A patient advocate designation is a document in which a person, the “patient”, appoints another person as their “patient advocate” to make health care decisions for them if, and only if, the patient cannot communicate their own health care decisions due to their incapacity. This is a “springing” type of document in that it becomes active ONLY during the incapacity of the patient to make decisions. The authority of the patient advocate designation is suspended once a patient regains the ability to participate in decisions regarding their health care. The patient reserves the right to revoke the patient advocate designation at any time when he or she has sufficient capacity to do so.
A patient advocate designation can communicate the patient’s desires regarding care, custody, medical treatment and mental health treatment, the making of an anatomical gift, and desires regarding the resolution of a conflict between a health care directive and the administration of means necessary to ensure the medical suitability of the anatomical gift.
A valid patient advocate designation requires all of the following:
- The individual must be at least 18 years old and of sound mind. MCL 700.5506(1).
- The patient advocate must be in writing AND signed by the patient in the presence of two witnesses. A witness under this section shall not be the patient’s spouse, parent, child, grandchild, sibling, presumptive heir, known devisee at the time of the witnessing, physician, or patient advocate or an employee of a life or health insurance provider for the patient, a health facility that is treating the patient, a home for the aged, where the patient resides, a community mental health services program or hospital that is providing mental health services to the patient. A witness shall not sign the patient advocate designation unless the patient appears to be of sound mind and under no duress, fraud, or undue influence. MCL 700.5506(4).
- Before its implementation, the patient advocate designation must be made part of the patient’s medical record with, as applicable, the patient’s attending physician, the mental health professional providing treatment to the patient, the facility where the patient is located, or the community mental health services program or hospital that is providing mental health services to the patient. MCL 700.5506(3).
- The patient advocate designation must include a statement that the authority conferred under this section is exercisable only when the patient is unable to participate in medical or mental health treatment decisions, as applicable, and, in the case of the authority to make an anatomical gift, a statement that the authority remains exercisable after the patient’s death. MCL 700.5506(3).
The patient advocate has all of the following rights, responsibilities, duties and limitations under the law:
- “A patient advocate shall act in accordance with the standards of care applicable to fiduciaries in exercising his or her powers.” MCL 700.5509(1)(a). As a fiduciary, the patient advocate must always act in the best interest of the patient.
- “A patient advocate shall take reasonable steps to follow the desires, instructions, or guidelines given by the patient while the patient was able to participate in decisions regarding care, custody, medical treatment, or mental health treatment, as applicable, whether given orally or as written in the designation.” MCL 700.5509(1)(b).
- “A patient advocate shall not exercise powers concerning the patient’s care, custody, and medical or mental health treatment that the patient, if the patient were able to participate in the decision, could not have exercised on his or her own behalf.” MCL 700.5509(1)(c).
- “The designation cannot be used to make a medical treatment decision to withhold or withdraw treatment from a patient who is pregnant that would result in the pregnant patient’s death.” MCL 700.5509(1)(d).
- “A patient advocate may make a decision to withhold or withdraw treatment that would allow a patient to die only if the patient has expressed in a clear and convincing manner that the patient advocate is authorized to make such a decision, and that the patient acknowledges that such a decision could or would allow the patient’s death.” MCL 700.5509(1)(e). The express desire to withhold or withdraw treatment under specific circumstances must be clearly outlined in the document.
- “A patient advocate may choose to have the patient placed under hospice care.” MCL 700.5509(1)(f).
- “A patient advocate under this section shall not delegate his or her powers to another individual without prior authorization by the patient.” MCL 700.5509(1)(g). The patient advocate designation must clearly outline a successor patient advocate to act if there is any intention for someone else to exercise these powers.
- “With regard to mental health treatment decisions, the patient advocate shall only consent to the forced administration of medication or to inpatient hospitalization, other than hospitalization as a formal voluntary patient under the mental health code, if the patient has expressed in a clear and convincing manner that the patient advocate is authorized to consent to that treatment. If a patient is hospitalized as a formal voluntary patient under an application executed by his or her patient advocate, the patient retains the right to terminate the hospitalization under the mental health code”. MCL 700.5509(1)(h). The patient advocate designation does not abrogate the patient’s rights if faced with a petition for involuntary hospitalization in a mental health ward.
- “In the case of a patient advocate designation that authorizes a patient advocate to make an anatomical gift of all or part of the patient’s body, the patient advocate shall act on the patient’s behalf in accordance with the public health code, and may do so only after the patient has been declared unable to participate in medical treatment decisions or declared dead by a licensed physician. The patient advocate’s authority to make an anatomical gift remains exercisable after the patient’s death.” MCL 700.5508(3).
Before acting, the patient advocate must execute a written acknowledgment that they accept the responsibilities imposed under the law. It is clear from the law that the patient advocate does have the power of authority to cause medical treatment to be withdrawn or withheld, even if that may result in the patient’s death. The patient advocate is also authorized under Michigan law to execute a do not resuscitate order on behalf of the patient.
Michigan is one of only a few states that does not have a statute for a living will. A living will, also known as an advance health care directive, is a legal document in which a person specifies what actions should be taken for their health if they are no longer able to make decisions. However, a patient advocate designation may be the means to communicate what kinds of decisions you would like made for you in end-of-life situations and to have a trusted person act on your behalf.
In the absence of a patient advocate designation, friends and family members may have to make an application for a guardianship at a Michigan probate court to have a fiduciary appointed to make decisions. This can lead to some unintended consequences for the person affected. First, the judge may appoint someone to handle affairs that is undesirable to the ward. Second, there can be protracted battles in court among family members disputing what is best for the ward, costing valuable time and expense. Finally, the ward’s wishes to not have his or her life artificially prolonged due to a persistent vegetative state or permanent coma will not be communicated and medical personnel must do everything possible to keep him or her alive despite any quality of life issues.
A patient advocate designation can be a valuable addition to your estate planning to ensure that your wishes are carried out. If you have questions about patient advocate designations or any other aspect of estate planning, do not hesitate to contact the attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.